Social Justice and the Structure of the Litigation System (original) (raw)
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Villanova Law Review, 1983
HERE can be little doubt that the American justice system is failing to meet the needs of the ordinary citizen. Courts are clogged and overloaded.' Delays in litigation are no longer the exception, but rather the norm. Not only for the poor, but even for large corporations, the decision to litigate has become a function of cost, not injury. 2 These complaints are not new. Indeed, some suggest that the problem is cyclical. 3 Although few would argue that the grass is nec
2021
Ideally, the law acts like an algoritm producing a fair and just outcome. If this is not respected, a party who feels disadvantaged can submit the case to court. The court will follow the rules of procedural law and apply material law on the case, and produce a fair outcome. Unfortunately, being right is in many cases not the same as getting right, and procedures can be manipulated. Economic considerations are key in these manipulations. This paper seeks to find which are the economic factors behind litigation, and how can they be applied by parties in their favour.
Litigation in the U.S. and in the Civil Law System: What Can We Learn from Each Other?
2008
Our meeting is very timely. Civil justice reform was on the front page of the New York Times almost every day last week. The House of Representatives passed three law and litigation reform measures: "The Common Sense Product Liability and Legal Reform Act," the "Attorney Accountability Act," and the "Securities Litigation Reform Act." According to the Times, "the Clinton Administration has decided to wage a vigorous fight against legislation that would drastically reshape the nation's legal system …" 1 The Administration apparently regards the Republican proposals as so extreme that they would "tilt the legal playing field dramatically to the disadvantage of consumers and middle-class citizens." 2 What is the drastic reshaping that the Clinton Administration is fighting? The challenged measures would "set Federal standards in all product-injury lawsuits, even those decided by state courts; would impose strict limits on punitive damages in all civil cases, and would require the loser in many lawsuits to pay the legal costs of the winner." 3 Are these reforms really so drastic? One thing we can learn from Civil Law systems, I think, is that these so-called reforms are not really so drastic. If we look to the European Union, which is not exactly known for hostility
Civil Procedure Review, Vol. 2, N° 3 (Brasil) | Herald of Civil Process, N° 5 (Rusia), 2012
In the paper I discuss the prohibition imposed by the US Congress on the Legal Services Corporation regarding the use of class action suits to provide free legal assistance to the poor. I deal with the creation of the Legal Services Corporation in the US, the scope and advantages of class actionssuits (particularly in terms of access to justice), and the role this kind of procedure can play in a context of a deep economic crisis that have deepened the gap in access to the civil justice system. I argue that the aforementioned prohibition to use class actions is unreasonable per se, and that this character is even more remarkable during the current post economic crisis scenario. Therefore, I suggest that the prohibition should be eliminated as soon as possible if there is a real interest in providing free legal services to the poor
A Remedy for the Least Well Off: The Case for Preliminary Damages
Social Science Research Network, 2021
Faculty of Law for useful comments and suggestions. We also thank the American Association for Justice Robert L. Habush Endowment for supporting our research and _____________________ for outstanding research assistance. REMEDY4LEASTWELLOFF.DOC 2/27/2021 9:16 PM 2 A Remedy for the Least Well-Off [Vol. nnn:nnn Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing altogether or accept unfavorable and unjust settlements to alleviate their financial plight. Aware of this reality, corporate defendants have an inherent incentive to break the law and then strategically drag on trials in order to force victims who lack the financial wherewithal into unfair settlements. As we show, preliminary damage awards will rectify these distortions. By providing poor victims the financial oxygen they badly need and by eliminating the incentive of rich wrongdoers to drag litigation unnecessarily, preliminary damage awards will not only level the litigation playfield, but will also free up considerable judicial resources.